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January 5, 2000

FOIL-AO-11895

The staff of the Committee on Open Government is authorized to issue advisory opinions.
The ensuing staff advisory opinion is based solely upon the facts presented in your
correspondence.

Dear Mr. Mulqueen:

I have received your letter of November 17, as well as the materials attached to it. In
brief, acting on behalf of an individual, you requested a communication sent by the Suffolk
County Probation Department to a judge in which the Department apparently offered an
unfavorable recommendation concerning the individual's application to amend a "class B"
certificate of relief from disabilities to a "class C." In response to both the initial request and
the appeal that followed, you were denied access on the basis of §390.50 of the Criminal
Procedure Law. It is your view that the cited provision is inapplicable, and you have sought
assistance in the matter.

In this regard, I offer the following comments.

First, I agree with your contention that §390.50 of the Criminal Procedure Law is
irrelevant, for that statute pertains to pre-sentence reports and related memoranda that are
prepared prior to sentencing.

Second, separate are provisions dealing with certificates of relief from disabilities,
which are found in Article 23 of the Correction Law (§§700-706). Section 702(3) states that
a court may request that a probation service of a county conduct an investigation for the
purpose of determining whether a certificate should be issued and that "[a]ny probation
officer requested to make an investigation pursuant to this section shall prepare and submit to
the court a written report in accordance with such request." Pertinent to the ability to gain
access to such a report is subdivision (6) of §702, which states that:

"Any written report submitted to the court pursuant to this
section is confidential and may not be made available to any
person or public or private agency except where specifically
required or permitted by statute or upon specific authorization
of the court. However, it shall be made available by the court
for examination by the applicant's attorney, or the applicant
himself, if he has no attorney. In its discretion, the court may
except from a part or parts of the report which are not relevant
to the granting of a certificate, or sources of information which
have been obtained on a promise of confidentiality, or any
other portion thereof, disclosure of which would not be in the
interest of justice. The action of the court excepting
information from disclosure shall be subject to appellate
review. The court, in its discretion, may hold a conference in
open court or in chambers to afford an applicant an opportunity
to controvert or to comment upon any portions of the report.
The court may also conduct a summary hearing at the
conference on any matter relevant to the granting of the
application and may take testimony under oath."

Based on the foregoing, it is suggested that the subject of the record in question seek
authorization from the court in an attempt to obtain the record at issue.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Derrick J. Robinson